In this appeal by special leave by the accused, the judgment of the
High Court of Madhya Pradesh dated 12.9.2003 in Criminal Appeal No. 270
of 1993, affirming the judgment dated 25.5.1993 in Sessions Trial
No.127/1991 passed by the II Additional Sessions Judge, Khargone,
convicting and sentencing the accused under sections 376, 323 and 342/34,
is under challenge.

2. In brief the prosecution case is as follows : On 28.1.1991 at about 8
p.m., prosecutrix Sumanbai, went to a shop for purchasing some groceries.
On her way to the shop, Gyarsibai, a relative, invited her to come inside her
house. When she entered Gyarsibai's house, her son Radhu who was in the
room came out, dragged her inside the room and confined her in the room
during the entire night. During the night, he sexually assaulted her by
inserting his penis in her vagina twice. When she cried, Radhu gagged her
mouth with a piece of cloth. Radhu freed her only the next day (Tuesday)
morning. She went back to her house and told her mother Lalithabai (PW-4)
about the incident. As her father Mangilal (PW-7) had gone out of town, her
mother sent Dinesh to inform him about the incident. When her father
returned on 30.1.1991, she along with her father went from their village
Umarkhali to Barud where they met their relative Ram Lal and his wife and
Gulabbai (PW-5) and she told Ramlal about the incident. Thereafter, they
also accompanied her and her father to the Barud Police Station where her
oral report was recorded by the officer in charge of the Police Station (PW9)
as a First Information Report (Ex.P5).

3. Sumanbai was sent to Dr. Vandana (PW-8), a lady surgeon in the
Main Hospital, Khargone for examination. She examined her and recorded
her findings as per Ex. P8. She also advised x-ray to decide her age. On
1.2.1991 an x-ray was taken by Dr. Khan (PW-1) who gave a report (Ex.P-1)
opining that Sumanbai was aged between 13 to 14 years. The Investigating
Officer (PW-9) took up investigation and prepared a site plan P-10. Radhu
was arrested on 19.2.1991 and sent to Khargone Hospital for medical
examination. Dr. Sanjay Kumar Bhat (PW-2), examined him and opined that
Radhu was aged about 19 years and capable of sexual intercourse. His
mother Gyarsibai was also arrested. Radhu was charged to stand trial for
offences under sections 342/34, 376 and 323 IPC. His mother was charged
under section 342/34 and 376/34 IPC. Eleven witnesses were examined.
After appreciating the evidence, the trial court by judgment dated 25.5.1993
found the accused 1 and 2 guilty and sentenced them to seven years
imprisonment with fine of Rs.500 and in default to a further period of six
months RI under, section 376 and 376/109 IPC respectively. They were also
sentenced to six months RI under section 342/34 IPC. In addition, Radhu
was sentenced to six months RI under section 323 IPC. All sentences were
to run concurrently.

4. Feeling aggrieved the two accused filed an appeal before the High
Court. During the pendency of the appeal Gyarsibai died. The High Court by
judgment dated 12.9.2003 dismissed the appeal, affirming the conviction
and sentence of the first accused Radhu. In this appeal, challenging the said
decision, the learned counsel for the appellant urged the following
contentions:

(i) The accused were falsely implicated by Sumanbai at the instance of
her father who was indebted to Radhu's father Nathu, to avoid repayment of
the debt.

(ii) The medical evidence showed that there was no injury on the private
parts of Sumanbai and that the rupture of hymen was old. The Doctor (PW-

8) also stated that she could not express any opinion as to whether a rape had
been committed or not.

(iii) The discrepancies in the evidence, absence of corroboration, the close
relationship (the prosecutrix described Radhu as her maternal uncle, as
Radhu's parents were Kaka and Baba of Sumanbai's mother) and the manner
in which the incident is alleged to have taken place, clearly demonstrated
that it was a false charge.

On the other hand, the learned counsel for the State submitted the
concurrent findings recorded by the trial court and High Court were based
on the evidence of the prosecutrix and that no corroboration was required
when the testimony of the prosecutrix was clear and convincing. She also
pointed out the prosecutrix (PW 3), her mother (PW4) and father (PW7) had
denied any indebtedness to Radhu's faher and there was nothing to show that
the prosecutrix had falsely implicated the accused. It was submitted that this
Court while exercising jurisdiction under Article 136 of the Constitution will
not interfere with the findings of fact recorded by the lower courts, unless
the decision appealed from, shocked the judicial conscience of the court.

5. It is now well settled that a finding of guilt in a case of rape, can be
based on the uncorroborated evidence of the prosecutrix. The very nature of
offence makes it difficult to get direct corroborating evidence. The evidence
of the prosecutrix should not be rejected on the basis of minor discrepancies
and contradictions. If the victim of rape states on oath that she was forcibly
subjected to sexual intercourse, her statement will normally be accepted,
even if it is uncorroborated, unless the material on record requires drawing
of an inference that there was consent or that the entire incident was
improbable or imaginary. Even if there is consent, the act will still be a
'rape', if the girl is under 16 years of age. It is also well settled that absence
of injuries on the private parts of the victim will not by itself falsify the case
of rape, nor construed as evidence of consent. Similarly, the opinion of a
doctor that there was no evidence of any sexual intercourse or rape, may not
be sufficient to disbelieve the accusation of rape by the victim. Bruises,
abrasions and scratches on the victim especially on the forearms, writs, face,
breast, thighs and back are indicative of struggle and will support the
allegation of sexual assault. The courts should, at the same time, bear in
mind that false charges of rape are not uncommon. There have also been rare
instances where a parent has persuaded a gullible or obedient daughter to
make a false charge of a rape either to take revenge or extort money or to get
rid of financial liability. Whether there was rape or not would depend
ultimately on the facts and circumstances of each case.

6. Sumanbai (PW-3) stated in her evidence that when she entered the hut
of Gyarsibai responding to her invitation, Radhu who was inside the hut,
shut the door and forcibly committed rape by inserting his penis twice; that
when she started crying, Radhu gagged her with cloth and kept her confined
in the room during the night and released her only the next day morning; and
that thereafter she went and informed her mother as to what happened. This
version is in consonance with her report of the incident recorded in the FIR
(Ex.P5) which was read over and accepted by her in her evidence. Lalithabai
(PW-4) stated that when her daughter returned on Tuesday morning and told
her that Radhu had raped her by force the whole night. Significantly, the
prosecutrix, in her cross-examination, has given a completely different
version. She stated that when Radhu committed the 'bad' act by inserting his
penis twice, she fainted and remained unconscious throughout the night; that
she came back to her senses only the next day morning; that she did not
know what happened during the night; that when she regained consciousness
and walked out of the place, Radhu was present but Gyarsibai was
elsewhere. She also asserted that she told the police that she had become
unconscious when the 'bad' act was committed. If she lost consciousness
when the alleged act was committed, and if she regained consciousness only
the next morning and left the house of Gyarsibai without any obstruction, the
prosecution case that the prosecutrix was gagged by Radhu, that the
prosecutrix was confined in his house during the entire night by use of force
by Radhu, that she was freed by Radhu only the next morning, becomes
false.

7. In her examination-in-chief, Sumanbai categorically stated that
Gyarsibai called her to her house when she was going to the shop of Sony
for buying sugar and tea. In her oral report of the incident registered as FIR
(Ex.P5), she had stated that she went to Gyarsibai's house, while on the way
to the shop. But in the cross-examination, she stated that Gyarsibai called
her when she was coming back from the shop after purchasing tea and sugar.
She also stated that she could not tell the value of the goods purchased by
her at that time. Thus, the prosecution case that the incident occurred when
she was going to the shop to purchase tea and sugar is not proved.

8. Sumanbai stated that the incident took place on Monday night, that
she returned on Tuesday morning and her father returned on Wednesday,
that she and her father went to the house of Gulabbai and Ram Lal at Barud
and she narrated the incident to Ramlal, that Ramlal also accompanied them
to the Barud Police Station. Sumanbai's mother Lalita Bai (PW4) also stated
that on Wednesday her husband took their daughter Sumanbai to Barud
Police Station, and that after returning from the Police Station, her husband
told her that they had also taken her brother Ram Lal, who resided at Barud,
to the Police Station. Mangilal (PW-7) father of Sumanbai, did not mention
about Ram Lal or his wife Gulabbai in his examination in chief. However, in
his cross-examination, he stated that he went to the house of his relative
Ramlal at Barud and Ramlal accompanied them to the police station. But,
Ram Lal was not examined. Ram Lal's wife Gulab Bai, examined as PW-5,
was declared hostile and she denied that Mangilal and Sumanbai visited their
house and informed them about the incident. She also stated that neither she
nor her husband accompanied Sumanbai to the Police Station. Therefore the
prosecution case that Sumanbai and her father informed Ramlal about the
incident on 30.1.1991 appears to be doubtful.

9. Sumanbai's mother Lalithabai states that when Sumanbai did not
return on Monday night, she and her son-in-law Ramesh searched for her up
to 3 a.m. on Tuesday morning. In her cross-examination, she stated that she
searched for Sumanbai in the village, and that she also asked Gyarsibai
about Sumanbai. In the cross-examination, she stated that she did not
remember whose houses she went to enquire about her daughter, and that
she did not remember whether she had gone to anyone's house at all.
Lalithabai further stated that she told her son-in-law Ramesh about the
incident and asked him to go to Chacharia to inform her husband about the
incident and to bring him back. Mangilal also said his son-in-law came and
informed him about the incident. Sumanbai stated that her brother-in-law
was sent to bring back her father; that her brother-in-law's name is Ramesh
but the SHO wrongly wrote his name as Dinesh in the FIR. Significantly,
Dinesh or Ramesh, brother-in- law of Sumanbai was not examined to
corroborate that there was a search for Sumanbai on the night of 28.1.1991
or that he was appraised about the incident by his mother-in-law on
29.1.1991 and that he went and informed his father-in-law about the
incident.

10. Thus the two persons (other than the parents) who were allegedly
informed about the incident namely Ramesh (on 29.1.1991) and Ramlal (on
30.1.1991) were not examined and consequently there is no corroboration.

11. Dr. Vandana (PW-8) stated that on examination of Sumanbai, she
found that her menstrual cycle had not started and pubic hair had not
developed, and that her hymen was ruptured but the rupture was old. She
stated that there were no injuries on her private parts and she could not give
any opinion as to whether any rape had been committed. These were also
recorded in the examination Report (Ex. P8). She, however, referred to an
abrasion on the left elbow and a small abrasion on the arm and a contusion
on the right leg, of Sumanbai. She further stated that she prepared two
vaginal swabs for examination and handed it over along with the petticoat of
Sumanbai to the police constable, for being sent for examination. But no
evidence is placed about the results of the examination of the vaginal swabs
and petticoat. Thus, the medical evidence does not corroborate the case of
sexual intercourse or rape.

12. We are thus left with the sole testimony of the prosecutrix and the
medical evidence that Sumanbai had an abrasion on the left elbow, an
abrasion on her arm and a contusion on her leg. But these marks of injuries,
by themselves, are not sufficient to establish rape, wrongful confinement or
hurt, if the evidence of the prosecutrix is found to be not trustworthy and
there is no corroboration.

13. Lalithabai says that when Sumanbai did not return, she enquired with
Gyarsibai. Sumanbai also says that she used to often visit the house of
Gyarsibai. She says that Radhu's parents are kaka and baba of her mother
and Radhu was her maternal uncle. The families were closely related and
their relationship was cordial. In the circumstances, the case of the
prosecution that Gyarsibai would have invited Sumanbai to her house to abet
her son Radhu to rape Sumanbai and that Gyarsibai was present in the small
house during the entire night when the rape was committed, appears to be
highly improbable in the light of the evidence and circumstances.

14. The FIR states that one Dinesh was sent by Lalithabai to fetch her
husband. Lalitabai and Mangilal have stated that they did not know anyone
by the name Dinesh. Sumanbai stated in her evidence that on 29.1.1991, as
her father was away, her brother-in-law went to bring back her father, that
the name of her brother-in-law is Ramesh, but the SHO wrongly wrote his
name as 'Dinesh'. But none else mentioned about such a mistake. Neither
Ramesh nor Dinesh was examined.

15. The evidence of the prosecutrix when read as a whole, is full of
discrepancies and does not inspire confidence. The gaps in the evidence, the
several discrepancies in the evidence and other circumstances make it highly
improbable that such an incident ever took place. The learned counsel for the
respondent submitted that defence had failed to prove that Mangilal, father
of prosecutrix was indebted to Radhu's father Nathu and consequently,
defence of false implication of accused should be rejected. Attention was
invited to the denial by the mother and father of the prosecutrix, of the
suggestion made on behalf of the defence, that Sumanbai's father Mangilal
was indebted to Radhu's father Nathu and because Nathu was demanding
money, they had made the false charge of rape, to avoid repayment. The fact
that the defence had failed to prove the indebtedness of Mangilal or any
motive for false implication, does not have much relevance, as the
prosecution miserably failed to prove the charges. We are satisfied that the
evidence does not warrant a finding of guilt at all, and the Trial Court and
High Court erred in returning a finding of guilt.

16. We, therefore, allow the appeal, set aside the judgments of the courts
below and acquit the accused of all charges.